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NOTES OF CASES.

502, it was held that it made no difference whether the goods were taken along for present delivery, or orders taken for future delivery. It will be noticed that the statute of 1883 gives authority to regulate or prevent hawking and peddling "in the streets," while it gives authority to regulate or prohibit sales by auction without that limitation. This is a circumstance that may be properly considered in determining whether the defendant was within the prohibition. He did not, in fact, in the street, sell or offer to sell any goods. The case of Bradley v. City of Rochester, 26 N. Y. St. Rep. 823, cited by the counsel for plaintiff, involved a different question. A penal statute is to be strictly construed. Cameron v. Seaman, 69 N. Y. 401; City of Buffalo v. Mulchady, 1 Sheld. 431. Many of the evils that are supposed in some of the cases to attach to the business of the peddler would not occur in business done after the manner of defendant. If a merchant living at Stamford, by himself or his agent, had been accustomed to do just what the defendant did, it would hardly be claimed that he was a peddler. Still the statute makes no distinction in the matter of residence. The foregoing considerations lead to the conclusion that the defendant was not shown to be engaged in peddling in the streets of the village within the meaning of the statute." Hardin, P. J., concurred, and Martin, J., dissented. See also, Davis v. Mayor, 64 Ga. 128; S. C., 37 Am. Rep. 60 (butcher); City of Chicago v. Bartee, 100 Ill. 61 (milkman); City of Kansas v. Collins, 34 Kans. 434 (drummer); Graffty v. City of Rushville, 107 Ind. 502; State v. Smithson, Mo. (patent medicines); Higgins v. Ruiker, 47 Tex. 402; State v. Wilson, 2 Lea, 28 (lightning rods); Gregg v. Smith, L. R., 8 Q. B. 303; Ex parte Taylor, 58 Miss. 478; S. C., 38 Am. Rep. 336. The last case is exactly in harmony with the principal case.

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N Village of Stamford v. Fisher, 63 Hun, 123, an action for violation of an ordinance against peddling, Merwin, J., said: "In substance, the defendant went from house to house and obtained orders for standard goods, to be delivered in the future; and thereafter, with a horse and wagon, and prepared packages, made deliveries in pursuance of the orders and received then the pay, and at the same time took or solicited like orders for subsequent delivery. The claim of the defendant is, that this manner of doing business did not make the defendant a peddler. Reliance is placed on the circumstance that the defendant had no goods except what had been previously bargained for. It is therefore argued that there was no carrying to sell or exposing for sale, which are claimed to be essential characteristics of the occupation of a peddler. Our statute does not define the term 'peddler.' We may however, to some extent infer the legislative idea from the provisions of title 4, chapter 17, part 1 of the Revised Statutes, entitled, 'Of Hawkers and Peddlers.' By section 1 of that title, as amended by chapter 72 of the Laws of 1880, it is provided that no person shall be authorized to travel from place to place within this State for the purpose of carrying to sell, or exposing for sale, any goods, wares or merchandise of the growth, produce or manufacture of any foreign country other than family groceries and provisions, unless he shall have obtained a license as a hawker and peddler in the manner hereinafter directed.' Inferentially it may be said that a person who travels from place to place for the purpose of carrying to sell, or exposing for sale, any goods, wares or merchandise, would be deemed a peddler. The ordinary meaning of the term is, one who travels about the country with merchandise for the purpose of selling it. 2 Bouv. Law Dict. In Rex v. McKnight, 10 In Seville v. State, Supreme Court of Ohio, March Barn. & C. 734, the defendant, as agent for a 2, 1892, it was held that whether a pugilistic enparty living in a neighboring village, went about counter is a fight or a boxing exhibition is not a the country once a fortnight getting orders for tea, question upon which expert testimony is admissible, and on a subsequent occasion made deliveries. This on the trial of an indictment for engaging in a was held not to be an exposing for sale, or carrying prize-fight. The court said: "The defendant called to sell, within the meaning of an act requiring any a witness who testified that he had been engaged peddler or other trading person, going from town in fifty-two prize-fights and boxing matches altoto town, or to other men's houses, carrying to sell gether, and had spent six years in acquiring the art or exposing to sale any goods, wares or merchan- of boxing. He was then asked by counsel for the dise, to take out a license. Emphasis was placed defendant to state what are the rules that apply to on the circumstance that the bargain for the goods a glove contest and also to a prize-fight.' An objecand the delivery were on different occasions. A tion to the question was sustained. The purpose of similar view is taken in Commonwealth v. Ober, 12 the question, as stated by counsel was to prove that Cush. 498; Commonwealth v. Gardner, 133 Penn. St. by the rules governing prize-fights there is no limit 289; Ballou v. State, 87 Ala. 145. In the latter as to the time of the rounds the combatants are case it is said that the distinctive feature of a ped- permitted to wrestle and throw each other, the dler is that he goes from house to house carrying fight is to a finish, the fight is without gloves, and his articles of merchandise with him, and concur- spikes are worn in the shoes; while the rules govrently sells and delivers. In Commonwealth v. Eich-erning glove contests require the parties to wear enberg, 140 Penn. St. 160, it seems to have been held gloves, spikes in the shoes are not allowed, the conthat a merchant going about the country and get-test ends at the conclusion of a specified round, and ting orders, which he subsequently fills, is not a each round is limited in point of time to three minpeddler. In Graffty v. City of Rushville, 107 Ind. The witness further testified that he saw the

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ute which provides that every
who shall be injured, in person or property or means
of support,
* * * by reason of the intoxication
of
any person,
shall have a right of ac-
tion" against the person who shall, by furnishing
intoxicating liquor, have caused or contributed to
such intoxication, plaintiff was entitled to recover
for the death of her adult son caused by intoxication
resulting from liquor furnished to him by defendant,
where the son actually contributed to plaintiff's sup-
port, though there was no legal obligation on him
to do so. The court said: "It will be seen that the
language of the statute is broad enough to include
the present plaintiff. She is the parent of the in-
toxicated person, and is injured in her means of
support by his death. This court has always con-
strued this statute literally, and has not deemed that
the true legislative intent was to be ascertained by
any strained or narrow construction of the words

combat between the defendant and Majesty, and was then asked by defendant's counsel whether it was conducted according to the rules of a glove contest, or those of a prize-fight. This question was objected to and the objection sustained. The counsel stated they expected the witness to answer that it was conducted according to the rules of a glove contest. Thereupon the witness was handed a couple of papers, one of which he said contained the Queensbury rules, and the other the London prize ring rules. These papers were then offered in evidence by defendant's counsel, but they were held to be incompetent. These several rulings of the court are assigned for error. The question to be determined by the jury was whether what took place between the defendant and Majesty, at the time and place charged in the indictment, was a prize-fight. The witnesses for the State, and for the defense, testified in detail to what occurred on that occasion, and there was but little, if any, sub-employed. In Clinton v. Laning, 61 Mich. 355, the stantial conflict in the testimony. It showed, beyond any doubt, that the combatants met in the ring prepared for the purpose, in pursuance of the agreement previously made, and fought viciously to a finish. They fought seventeen rounds, and on the eighteenth Majesty was knocked reeling to the ropes, and carried away in a dazed and unconscious condition, and in a few hours afterward died from the effect of the blows received. The post mortem examination disclosed that his vital organs were in a healthy and sound condition. His skull was fractured by one of the blows, and an artery of the brain ruptured, which caused his death. His head, neck, one arm, and his body showed the severity of the blows he had received. One eye was blacked, his nose cut, his mouth and lips bruised and swollen, and the physicians say that his neck, arm and body were black and blue from bruises produced by blows. Witnesses describe the blows struck him as bitter blows; and yet, up to the last round, they say Seville's punishment was even greater than that administered to Majesty. When Majesty was carried, disabled and dying, from the scene of the conflict, the prize money was paid over to Seville, who departed by the first train. The question for the jury to decide was whether this combat was a prizefight, not what the Queensbury rules or any other rules called it, nor what name those accustomed to such combats have given it. What was it, in plain English? And this question of fact, under a proper instruction from the court as to what constitutes a prize-fight, the jury was as competent to decide as the most experienced boxer or prize-fighter. The question was not one of skill or science, to be decided upon the opinions of those experienced in such practices, or by rules adopted for the government of associations of such persons; but one within the comprehension of the common understanding, and the range of common knowledge, which the jury could decide upon the facts proven, as well as a professional pugilist."

In Eddy v. Courtright, Supreme Court of Michi gan, April 8, 1892, it was held that under a stat

father sued for damages occasioned by the defendant having contributed to the drunkenness of plaintiff's adult son, by means of which the son became helpless, and the father thereupon assumed his care. It was contended that the father could not recover until he showed that an order had been made requiring the plaintiff to support the son; but the court held otherwise, even though in that case the father's damages were dependent upon the right given to one injured in his property. In Brockway v. Patterson, 72 Mich. 126, it was held that under this statute it was not necessary to show that the death of the intoxicated person was a probable consequence of his intoxication, but that under the broad language of the statute any person injured in the manner stated by a person while intoxicated may recover, even though the injury inflicted may not be such as might reasonably be expected. This ruling was supported by Neu v. McKechnie, 95 N. Y. 632; King v. Haley, 86 Ill. 106; and was reiterated in Thomas v. Dansby, 74 Mich. 398, and again in Duty v. Postal, 87 id. 143. These cases are referred to to illustrate that the court has uniformly given the language of this act a liberal construction, as well as to answer the suggestion of defendant's counsel that the damages resulting to plaintiff are too remote, because the death of James Eddy could not have been foreseen by the defendant. It was also held in Brockway v. Patterson, that even though a widow was not in express terms named in the statute, the language or other person' should be held to include the injured widow. Under the averments of this declaration the parent who was in fact injured in her means of support is given a right of action. We do not think the intent was to limit the right to those who were cut off from a means of support which could be legally exacted or enforced, but that the language is sufficiently broad to cover the case of the present plaintiff. The only case which we find in which a parent's right to recover under the Civil Damage Act has been denied, bearing any analogy to the present case, is Veon v. Creaton (Pa. Sup.), 20 Atl. Rep. 865, which case is clearly distinguishable, for the reason that the statute of

Pennsylvania only gave the right to one injured in person or property, and does not give a right of recovery to one who was injured in his or her means of support. Our statute is broader, and under its terms, if a parent or other person is in fact injured in their means of support, a cause of action is given. The loss to the present plaintiff is quite as serious if the support given her by her son when living was induced rather by a sense of filial duty then because of fear of an action by the superintendents of the poor. And the aid given her is none the less her 'means of support' in the one case than in the other."

LAW-MAKING AND LAW-BREAKING.

WE

E live in an era of excessive law-making. Clerical perfectionists, professional humanitarians and social agitators, together with a body of well-meaning but simple-minded folk, are meeting with increasing frequency in these later days, and devising more threatening laws to drive out and destroy that instigator of all offenses against the well-being of society-the devil. As a result of this mania for law-making, legislative bodies volley their bills upon us like gatling guns. The quack doctor proclaims that his nostrum will cure any ill from a wooden leg up to unrequited affection; likewise our legislative quacks prescribe remedies for every evil from the vice of "treating" up to the heinous offeuse ou the part of the insurance agent of dividing his commissions with the insured, which has recently been made a misdemeanor in New York. All the laws of the Roman republic in a century of her greatness were less in number than are turned out by the New York Legislature in a single decade. The ancients however established a wholesome check upon hasty legislation. They required the ambitious law. maker to stand with a halter around his neck in order that the populace might hang him if displeased with his innovation. But should we adopt this preventive of ill-considered legislatiou it would fail as a remedy, for the people themselves are thoroughly imbued with the idea that a statute law is a sovereign specific for every evil.

Every intelligent person is aware, I apprehend, that a like enthusiasm does not animate the execution of law. The Epicureans, two thousand years ago, believed that God arranged the universe, set it going and then went to sleep. With a like simplicity our law-making enthusiasts vainly imagine that they have achieved success when their pet scheme for suppressing vice is formulated into a statute, and that when this cherished end is attained they too may sleep, while the law in and of itself extirpates crime. He who believes that a perfect system of law will save a nation from the ravages of crime fails, I submit, to appreciate what human nature is, and what its history has taught us. The Roman republic, with its simple code of laws written upon a few tablets, secured great happiness to its people. Then came plundered provinces, luxury, a universal passion for money and political corruption, as they have come to us. Rome sold her soul to materialism. Patriotism survived upon the lips but was dead in the heart. The empire followed, and the attempt was then made to revive the virtues of the republic by more threatening statutes. Laws multiplied rapidly. Finally, while she was in the very throes of death, appeared those beneficent codes of civil and criminal law that have survived her decay and to-day govern more than one-half of the civilized world. Let us carry the comparison a little further. While Rome with her magnificent codes of law, imposing the sever.

est penalties upon vice, was slowly but surely dying because of the dry rot of pollution, the barbarian Saxons, in their northern forests, without laws, dressed in skins, but cherishing honor and revering marriage, were building deep and wide the foundation of enduring empire.

Strange as it may seem at first, the annual volume of laws threatening vice with punishment is a marked symptom of the decay of moral courage. These are but the empty, penitential forms which cowardly men employ to absolve their conscience from the sense of obligation to enforce existing laws. It calls for manliness and courage to pursue the law-breaker to conviction. It does not take a great amount of courage to meet with kindred spirits and to resolve against vice. While these loquacious enthusiasts are inveighing against our defective laws aud petitioning for their amendment, heroes like Mr. Gerry and the late Mr. Bergh have been waging battle like giants for their enforcement, and that too with beneficent results.

A little observation will confirm the statement that our penal statutes against bribery, lotteries, violations of excise laws, the circulation of obscene literature, attempts of suicide, criminal abortions, the negligent use of dangerous machinery, prize fighting, the defacing of natural scenery, the selling of cigarettes to certain minors and the carrying of concealed weapons are practically unexecuted. I am confident that not one violation of these laws, when considered in the aggregate, out of each ten thousand violations, has been made even the basis of an accusation, while convictions under these statutes are about as rare as white blackbirds. A few illustrations of how our criminal laws are openly violated, and how public opinion upon the subject of their violation has been changing in recent years, may be of interest. The first illustration ought to suggest to us that our modern Knickerbocker does not cherish the same reverence for law as did his illustrious ancestors. The Court of General Quarter Sessions of the Peace was the first court established in the colony of New York. This court opened August 7, 1694, with Abraham De Peyster as presiding judge. The first indictment found in this court was against John Watson, who was accused of forestalling the market. Since that time until the recent enactment of our Penal Code, to engross and absorb any particular necessary staple of life so as to impoverish and distress the mass of the community, has continued a crime, yet our wheat speculators in New York and Chicago have in recent years been in the habit of forestalling the market upon a gigantic scale and with perfect impunity.

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"A person who, within this State, engages in, instigates, aids or encourages, or does any act to further a contention or fight without weapons betweeu two or more persons, or a fight commonly called a ring or prize fight * is guilty of a misdemeanor." So reads our Penal Code. A few days ago the prize fighter Corbett and the backer" of John L. Sullivan, followed by a crowd of roughs, betook themselves to the office of one of the great dailies of New York city, and there one of the editors of that paper attempted to arrange with these disreputable fellows the preliminaries of a prize fight. Upon the following morning nearly two columns of this newspaper were filled with a description of the disgusting details of their meeting. About a year ago, in the city of Troy, N. Y., a prize fight occurred between a white man and a negro. In order that this brutal fight might take place without apprehension of danger on the part of the participants, the county judge of Rensselaer county granted an injunction prohibiting the police from interfering therewith. The frequency of such exhibitions of lawbreaking upon the part of those who from their po

sitions in life are under the highest obligations to maintain the laws, dulls and deadens the public sense of their dangerous character. The habit of breaking even unreasonable laws by ordinary men tends to make a community altogether lawless, but when the editor of a great newspaper openly violates the laws can there be any question as to the pernicious effect of the example?

But the most ghastly feature of the non-execution of laws is seen in the statistics as to the crime of murder aud its punishment in this country. Eight years ago Mr. Muthall, in his "Dictionary of Statistics," showed that murder is more than three times as common in the United States as in England, France or Germany. In an article entitled "Mob or Magistrate," which appeared in the Century magazine for April, 1884, it is stated that in 1882 there were twelve hundred and sixty-six murders in this country, and in 1883, fifteen hundred. In 1883 there were ninety-three legal executions, as punishment for murder, and one hundred and eighteen cases of lynching. It has been recently computed by competent authority that of fourteen thousand persons charged with murder in the United States within a given period only five hundred and fifty-eight were legally executed therefor, and nine hundred and seventy-five were lynched. Is it not high time to get some of this wild beast notion of justice out of the minds of the American people?

"Mob law," said the late Mr. Justice Bradley, "is a prostration of all law and government, a defiance of the laws, a resort to the methods of vengeance of those who recognize no law, no society, no government."

Are we

The list of unpunished crimes might be extended much further. I might well call attention to the frequency of the compounding of petty offenses in the inferior courts and to the criminal negligence of railway officials and the owners of steam boilers, but I am aware that I have already incurred the criticism of those who deem it unpatriotic to tell unpleasant truths about one's own people. Rather it is unpatriotic to close our eyes to the existence of these evils or to affect indifference as to their magnitude. not wise enough to see our faults while we hug our virtues? M. Guizot, while an exile in England in 1848, met Metternich, who was also an exile. Metternich said to him: “I have one consolation, I am conscious that I have not committed a mistake." I am happier than you," responded Guizot, "for I have made some mistakes and I have perceived them." Evils of the kind described abound among all peoples, and as heirs of liberty under the law we shall act wisely and worthily if we display the intelligence which clearly discerns these evils and the patriotism which remedies them.

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The causes of this condition of lawlessness must needs be sought out before we can devise intelligent remedies. I believe that the main cause will be found in the fact that by our laws and traditions the initiative steps for the execution of criminal law must be taken by the individual citizen. I would not be understood as saying that the prosecuting attorney may not, like any other citizen, institute such a proceeding. The district attorney of New York city recently set the good example of commencing such a proceeding But the information must upon his own complaint.

needs be in most cases made by the citizen, and he is too engrossed in the quest for wealth to find time for such important and patriotic service to the State. The saying that what is everybody's business is nobody's business applies with striking force to the matter of a wholesome enforcement of law in our midst. Outside of our large cities societies organized for the purpose of bringing law-breakers to punishment are, with few exceptions, unknown, and in the country it is practically impossible to arouse and combine men for such

a worthy purpose. If a few good and true men in a country village attempt to bring the criminal to pun ishment they are at once pointed out as mean busybodies, or low, troublesome fellows, and are looked upon by their neighbors in very much the same light as private detectives are regarded. The high priest counselled that it was better that one innocent man should be put to death than that a whole nation should be put in an uproar, and in the same ignoble spirit the ordinary law-abiding citizen upon the farm or in the village argues that it is better that a few men should be allowed to violate the law than that the whole com. munity should be disturbed by lawyers and lawsuits, and the burdens of taxation thereby increased. While opinions among the law-abiding thus differ the vicious present a solid front against the execution of laws. They are drawn into complete unity of action by the cohesive power of love of plunder and the need of protection from punishment. Again, a mawkish senti ment to extenuate or pardon offenses against the law has been growing rapidly during the last few years. This morbid sentimentality is fostered by modern fiction and by the glamour with which many of our newspapers surround the criminal. It was but a few days ago that a man, who had been previously convicted of the crime of burglary, was discovered in the very act of breaking into a dwelling-honse. He was arraigned before a magistrate in the city of Brooklyn. It was disclosed upon the examination that the prisoner was about to be married to a woman who appeared before the magistrate, and by her appeals convinced him that she would bring about a reformation in the prisoner. The kind-hearted magistrate discharged the offender, and bade him and his betrothed to leave the State. The evil does not stop with this blow at the enforcement of law. A mercenary press paints this seductive scene in vivid hues, and alas, the populace approve the action of the magistrate.

A perfect remedy for the evils of law-breaking would exist if each citizen felt as indignant at the perpetration of a crime as if he himself were a direct sufferer. Human nature is incapable of such a severe test of its virtue. We can however do much good by repealing the dead-letter statutes. We can accomplish something by vigilance in preventing the passage of laws concerning the execution of which the people are indifferent. We can strengthen the arm of law by placing the responsibility for its enforcement in the executive of the State. If we continue our present system we can exercise our influence to exalt the importance of the jury system, as a means of arousing among the people an interest in the proper execution of law. The ordinary man, absorbed in business, approaches the court as a juror indifferent to the execution of law and thinking only of how he'can escape the performance of this irksome duty. If required to sit he comes away from the court interested in the matter of the proper enforcement of law, aroused to a nobler conception of his duty as a citizen and inspired by an enthusiasm which for weeks thereafter is contagious among his fellows. I am aware that these remedies suggested are mere palliatives. The effective remedy will be found in a more exalted conception among our citizens of their patriotic duty to enforce the least as well as the greatest of laws. Thirty years ago an attempt was made to violate the great law of our national unity. To vindicate that law we sacrificed hundreds of thousands of men and billions of treasure. But we should not forget that nations do not go down to death in the perilous sweep of battle, but rather die out from the effects of an aggregation of lesser evils in times of smooth-faced peace and smiling plenty. The integrity of no single law so vital as the bond of our Union is now assailed, but the integrity of a thousand lesser laws which guard our lives and our homes are being

weakened and destroyed. In the Maerchen of Goethe the will o' the wisps with their peaked tongues dex. terously licked out the gold veins of the colossal figure of the composite king to its very heart, and when at last the most tenuous filaments were eaten out the image crushed suddenly together. The nation is really more imperilled to-day from the evils of the broken law, evils that are eating out the most delicate filaments of society, than it was in the stormy days of '61. The ancient law-givers, to induce the highest possible veneration for their laws, taught the people that they came from Heaven and were sacred. We cannot invest our laws with a sacredness inspired by superstitious veneration, but we can inculcate the great truth that they represent the majesty of the people, and that to uphold, maintain and enforce them is our highest patriotic duty. The words of wisdom and admonition spoken by our martyred Lincoln, whose kind, sad face is ever with us in the memory of those heroic days, come rustling down to us over the dusty growth of twenty-six years of prosperous peace, and we hear him again saying: "Let reverence of law be breathed by every mother to the lisping babe that prattles on her lap; let it be taught in the schools, seminaries and colleges; let it be written in primers, spelling-books and almanacs; let it be preached from pulpits, and proclaimed in legislative halls, and enforced in courts of justice; in short, let it become the political religion of the nation."

NEW YORK, April 25, 1892.

FRANKLIN PIERCE.

DAMAGES-DESTRUCTION OF FRUIT

TREES.

NEW YORK COURT OF APPEALS, SECOND DIVISION,
MARCH 15, 1892.

DWIGHT V. ELMIRA, C. & N. R. Co.

In an action for damages for injury to fruit trees the measure of damages is the difference between the value before and after the injury of the realty of which the trees formed a part.

10 N. Y. Supp. 950, mem., reversed.

Fruit trees like those which are the subject of this controversy have little if any value after being detached from the soil, as the wood cannot be made use of for any practical purpose; but while connected with the land they have a producing capacity which adds to the value of the realty. Necessarily the testimony adduced tended to show, not the value of the trees severed from the freehold, but their value as bearing trees, connected with and depending on the soil for the nourishment essential to the growth of fruit. How much was the realty, of which the trees formed a part, damaged, was the result aimed at by the questions and attempted to be secured by the answers. Can the owner of an injured freehold, because the trees taken or destroyed happen to be fruit instead of timber trees, have his damages measured in that manner? is the question presented now, for the first time, in this court, so for as we have observed. The learned referee followed the decision in Whitbeck v. Railroad Co., 36 Barb. 644, in which the proposition is asserted that while fruit trees form a part of the land, the true rule is that if the thing destroyed has a value which can be accurately measured without reference to the value of the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing destroyed, and not for the difference in the value of the land before and after such destruction. The court cited no authority for the conclusion reached, and our attention has not been called to any prior decision justifying its position. Nor has the Whitbeck Case been approved in this court, although cited and distinguished in Argotsinger v. Vines, 82 N. Y. 309. While the rule is undoubtedly as stated by the learned judge in the Whitbeck Case, that a recov ery may be had for the value of the thing destroyed, where it has a value which may be accurately measured without reference to the soil in which it stands, he apparently overlooked the fact that fruit trees do not have such a value, and the rule was therefore, as we think, wrongly applied. Cases are not wanting to illustrate a proper application of that rule. Where timber forming part of a forest is fully grown the value of the trees taken or destroyed can be recovered. In nearly all jurisdictions this is all that may be recovered, and the reason assigned for it is that the realty has not been damaged, because the trees having been

APPEAL from Supreme Court, General Term, brought to maturity, the owner is advantaged by their

Fourth Department.

James Armstrong, for appellant.

Raymond L. Smith, for respondent.

PARKER, J. The judgment awards to the plaintiff $503 for damages occasioned by the defendant's negligence in setting on fire and destroying twenty-one apple trees, two cherry trees and two and one-half tons of standing grass, and also injuring seven apple trees, the property of plaintiff. The only question presented on this appeal is whether the proper measure of damages was adopted on the trial.

being cut and sold, to the end that the soil may again be put to productive uses. 3 Suth. Dam. 374; 3 Sedg. Dam. (8th ed.) 45; Single v. Schneider, 30 Wis. 570; Webster v. Moe, 35 id. 75; Webber v. Quaw, 46 id. 118; Hazeltine v. Mosher, 51 id. 443; Tuttle v. Wilson, 52 id. 643; Wooden Ware Co. v. U. S., 106 U. S. 432; Graessle v. Carpenter, 70 Iowa, 166; Ward v. Railroad Co., 13 Nev. 44; Tilden v. Johnson, 52 Vt. 628; Adams v. Blodgett, 47 N. H. 219; Cushing v. Longfellow, 26 Me. 306. In this State it is settled that even where full grown timber is cut or destroyed the damage to the land may also be recovered, and in such cases the measure of damages is the difference in the value of the land before and after the cutting or destruction complained of. Argotsinger v. Vines, 82 N. Y. 308; Van Deusen v. Young, 29 id. 36; Easterbrook v. Railroad Co., 51 Barb. 94. The rule is also applicable to nursery trees grown for market, because they have a value for transplanting. The soil is not damaged by their removal, and their market value necessarily furnishes the true rule of damages. 3 Sedg. Dam. (8th ed.) 48; Birket v. Williams, 30 Ill. App. 451.

A witness called by the plaintiff was asked: "Question. What were those twenty-one trees worth at the time they were killed?" Objection was made that the evidence did not tend to prove the proper measure of damages, but the objection was overruled, and the answer was: "Answer. I should say they were worth $50 apiece." Similar questions were propounded as to the other trees; a like objection interposed; the same ruling made; answers to the same effect, except as to value given; and appropriate exceptions taken. Tes- Coal furnishes another illustration of the rule maktimony was also given tending to prove that the landing the value of the thing separated from the realty, burned over by the fire was depreciated in value $30 although once a part of it, the measure of damages, per acre. The only evidence offered by the plaintiff where it has a value after removal, and the land has touching the question of damages was of the character sustained no injury because of it. 3 Sedg. Dam. already alluded to. (8th ed.) 48; 3 Suth. Dam. 374; 5 Am. & Eng. Enc.

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